Tartan Marine Co.

TARTAN MARINE COMPANY Tartan Marine Company and Roger H. Williams. Case 11-CA-7640 June 28. 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On February 9, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed an answering brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings. findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be. and it hereby is, dismissed in its entirety. I Together wiih his exceptions, the General ('ounsel filed a motion to defer the Decision and Order herein pending the issuance of a Decision by Admin- istrative Law Judge Abraham Frank in Cases I CA 6905, et al., which also involve the instant Respondent. The G(eneral Counsel also moved that the instant proceeding be consolidated with the proceeding therein. Following the issuance of a Decision by Administrative l.aw Judge Frank in Cases I I CA-6905, et al., the General Counsel has now filed a supplemental motion. again requesting the Board to consolidate the instant proceeding with Cases I -CA-6905, et al., and to defer its consideration pending consideration of the later proceeding. The General Counsel argues that the various unlair labor practice allegations made in Cases It CA 6905. el al. many of which where found as violations, would materially affect the outcome herein. Re- spondent has filed an opposition to the General Counsel's supplemental mo- tion. Without passing on the findings made by Administrative aw Judge Frank in Cases II CA 6905. et al, to which exceptions are now pending before this Board. we find no merit in the General Counsel's argument. For, even assuming all the violations alleged in those cases are found, this would not, in our opinion, affect the outcome of the instant proceeding. Therefore. the General Counsel's motions are hereby denied. DECISION STAIEMENT OF Ti CASE THOMAS A. RICcl, Administrative Law Judge: A hearing in this proceeding was held on December 21, 1978, at Rock- ingham, North Carolina, on complaint of the General Counsel against Tartan Marine Company. here called the Respondent or the Company. The complaint issued on June 30, 1978. upon a charge filed on May 15. 1978. by Roger H. Williams, an individual. The issue of the case is whether Williams was discharged by Respondent in violation of Sec- tion 8(a)(3) of the Act. Briefs were filed by the General Counsel and Respondent. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF F('I I. TIE BFUSINESS OF THIl RESPONDENT Tartan Marine Company, a North Carolina corporation. operates a facility in Hamlet, North Carolina. where it is engaged in marine construction. During the 12-month pe- riod before issuance of the complaint, a representative pe- riod, from this location it shipped products valued in excess of $50,000 to out-of-State locations, and during the same period it caused to be delivered to its North Carolina loca- tion goods and equipment valued in excess of $50,000 from out-of-State sources. I find that Respondent is engaged in commerce within the meaning of the Act. 11. ll Il.ABOR OR(iANIAIION INVO()I.VHI) I find that United Steelworkers of America, AFL -C(O. here called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 1l. lIH: Al.I.E(iEI) tiNFAIR ABO()R PRA('TI( A. The C(ase i Brief Roger Williams was an employee of this company for about 3 years. On February 17. 1978, a Friday. he was absent from work and the following Monday was dis- charged. .ate in 1976 and in earls 1977 there was an or- ganizational campaign carried on by the United Steelwork- ers of America. and at that time Williams' name was listed with that of a number of other employees in a telegram the Union sent to the Company to inform it of the identity of organizing committee members. He later signed a union card, went to some meetings, and talked in favor of the Union. These immediately preceding two sentences reflect all of the evidence contained in this entire record about employee union activity. When dismissed. Williams was told the reason was his excessive record of absenteeism. The complaint alleges Re- spondent discharged him because of his union activity and thereby violated Section 8(a)(3) of the Act. Concededly, this is an inference case, i.e., there is no direct evidence of illegal animus against the man. Rather, there are instead persua- sive indications of extraordinary tolerance of his very bad record of absences, both excused-meaning when he called in to say he would be absent-and unexcused. He had sev- eral times been warned of discharge for this reason and been put on probation. When fired this is what he was told. The supervisors who had anything to do with the discharge denied, on this record, that Williams' union activity was in any way a factor in their decision. 234 NLRB No. 38 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The theory of prosecution is that a contrary finding of unlawful purpose is warranted by indirect evidence, the cir- cumstances, and oblique proof-in short, the unfair labor practice must be inferred. Of critical significance in this case, there is not a single allegation in this complaint of Respondent having committed any violation of Section 8(a)(1)-any coercive statement or conduct of any kind. To fill the void the General Counsel relies upon oral tes- timony given in another unfair labor practice Board pro- ceeding-Case 1I -CA 6905--in which a hearing was held in March 1978 before another administrative law judge, who has not yet issued his Decision in that earlier proceed- ing. It seems that an election was held among the approxi- mately 90 employees of this plant, with objections filed by the Union after losing, or after inconclusive results. The Union also charged the Company at that time with an ille- gal refusal to bargain. The General Counsel now asks that I take "judicial notice" of oral testimony given by witnesses in that other 1978 proceeding. From the record transcript: "I'm simply asking the Judge to take judicial notice of the prior proceeding, . . . in view of the fact that there is no independent 8(a)(1) in this case. The record in the prior proceeding will support the General Counsel's contention that Mr. Williams was, in fact, discharged for his union activity based upon animus and antiunion statements that were produced in that proceeding." It goes without saying that the General Counsel wants me to credit those witnesses in the earlier case whose testi- mony was damaging to Respondent and disregard any con- flicting testimony placed into evidence by Respondent at that time. Of course there is of necessity the implied sugges- tion that the demeanor of the witnesses in the first case is irrelevant. When asked what would be the situation were I to credit the General Counsel's earlier witnesses and the administrative law judge who heard and saw them discred- ited them, the General Counsel failed to answer. He cited no authority, either at the hearing or in his brief, to support his argument for such "judicial notice." My decision here will rest solely upon the record of this proceeding. It may be, of course, that the findings of fact here made, when coupled with the Board's eventual findings in the ear- lier proceeding, will suffice to prove Williams was in fact discharged illegally. Towards the close of the hearing I sug- gested the General Counsel give thought to the possibility of asking that decision here be deferred until issuance of the Board's decision in Case I -CA-6905, together with simul- taneous agreement with Respondent to toll possible back- pay liability during the interval period. The suggestion was ignored. B. The Evidence in This Case I find the evidence as a whole does not support the com- plaint allegation of wrongdoing and shall therefore dismiss the complaint. In January 1977, in a conversation between the two, Jack Cuthbertson, the plant manager, asked Williams if he had heard any rumors about the union organizational campaign going on. When the employee said yes, Cuthbertson asked how did Williams feel about it. When Williams answered he was undecided, the manager said he hoped the man made no mistakes that might hurt him in the future. This is Williams' testimony. Cuthbertson admitted having made the inquiry, adding he hoped the employee did nothing "that could affect his future at the plant." Williams also testified that in January 1978. after he had been subpenaed to the March hearing in the earlier Board proceeding. Cuthbertson asked him if the rumor was true that he was going to withdraw his charge. Apparently Wil- liams had filed a charge personally at that time. When Wil- liams answered "not really," the manager added, still ac- cording to the employee, "it's something to think about." Cuthbertson denied having said these things, although he did admit he knew at the time Williams had been sub- penaed to appear. Against the foregoing, Respondent came forth with a very convincing prima facie case of discharge for just cause. For the calendar year 1977 Williams had one of the worst records, if not the very worst, of lateness and absences of all the employees in the plant, many of the absences unex- cused. There is no need for detailing this here, for Williams admitted it himself. Again and again, Gary Dycus, his im- mediate supervisor, talked to him about it, repeatedly warn- ing him it would have to stop. It is a fact that Williams suffered from very bad teeth and stomach trouble. For the most part his absences and, I suppose, even his late arrivals were because of his physical condition. Dycus knew this. Nevertheless, his superior kept reminding him his attend- ance on the job was needed what with the continuing flow of work through the assembly line and the consequent dis- ruption of other work stations when Williams' station stalled because of his absence. That Williams' frequent ab- sences in fact caused great delays and extensive costs- what with resultant shifting of employees and overtime work having to be done--is shown clearly by the uncontra- dicted testimony of other employee witnesses who were af- fected as a result. Not only is there multiple testimony by others of the extent of production delays resulting from the fact Williams held a critical post in the production line, but there is also testimony by other employees that Dycus, who was in charge, asked them to help him find a way of getting Williams to work with more regularity. One of the men, Wayne Rushing. Williams' cousin, said that Dycus told him "he would hate to have to terminate him [Williams], but it would have to be done," that he passed this message to his cousin twice, but that nothing came of it. Aside from oral warnings Dycus gave him, which Wil- liams also admitted, a number of such warnings were re- corded in his personnel file. Thus, early in May 1977 the supervisor had to go to Williams' home to find out why he did not show up for work, and to talk to him "about being out and not calling in." This happened a number of times. Again the record shows that on May 21 he "did not show up for work," but said he would do overtime. On June 3, as also recorded by Dycus on the record: "Talked to Roger about lates and absentee. Told him it would have to im- proved in 2 weeks or he would get a 3 day layoff. And the next time he would be terminated." Still from the personnel file, dated June 27: "Roger re- fused to work overtime when asked. Was told the next re- fusal would be 3 days off and the next time he would be terminated." The last entry on Williams' record for 1977, dated August 24, reads: "Talked to Roger about his lates and absentee. Told him he was being put on a two week 168 TARTAN MARINE COMPANY probation period for the 2nd time. Told him there would not be a 3rd time. Told Roger we would give him a leave of absence if need be to straighten his sickness problem out. Said he would let us know. He said he would straighten the lates out. We told Roger we would work with him to get his problems solved. Roger seemed agreeable with what was said." Williams' testimony also shows he was given notice of these last two warnings in writing at the time the entries were made on his record. As to Dycus' proposal that he take a leave of absence "to straighten his sickness prob- lem," Williams said it came in December, ut he was wrong, for the records are more reliable. He said Dycus suggested he just take 30 days off and find a way to start working regularly, but that he refused the offer. His attend- ance did improve for several months after that. Towards the end of 1977 and into 1978 he began to be late and absent again. From the first of the year and up to his dis- missal he was late twice and absent 5 days. Finally, late in January he took 3 days off, with advance permission by the Company, to have his teeth extracted. On February 17 came the final violation of company rules that broke the camel's back. The printed rules say specifically that a man must call in before 9 a.m.--this is 2 hours after starting time- if he is not coming in. and that he can be fired if he does not. Williams called in at 9:30 a.m. that Friday and talked to the office girl who regularly receives such calls and records them. She wrote down 9:30 as the time of the call. At the hearing Williams insisted he had called precisely at 8:55. and kept repeating that Gardner, the office girl, was busy doing something else when he called and therefore made the written notice later. How he could have seen what she was doing Williams did not ex- plain. Gardner testified for Respondent. There is absolutely no reason for not crediting her. I find that Williams did call in too late. When he came in the followsing Monday he was discharged. On the question of Respondent's attitude towards Wil- liams personally-i.e.. as an individual apart from his em- ployee status and with respect to his performance capacitN. if this record shows anything it is that his superiors liked him. The General Counsel talks of outright animus against the man and dislike because of his prounion sentiments. All this is said to have arisen because Cuthbertson had asked him a year earlier what he thought of the Union and ad- vised him to think carefully so as not to possibly disadvan- tage himself. Cuthbertson should not have asked that ques- tion. But that was long ago, and much has happened since. The manager's statement, only a month before the dis- charge, that withdrawal of his earlier charge by Williams was something to be considered, was ambiguous and might be construed as a veiled threat. But Williams did not take it that way. It happened less than 6 months before his filing of this charge, yet the incident is not now alleged to have been a coercive statement contrary to the statute. There are revealing facts against this. When Williams had to have a telephone where he lived because his not coming to work when scheduled, without even telling man- agement about it, had to stop, he had no money to put up as security for his bills. Dycus. the man who later fired him. personally guaranteed the phone account in writing. More than once Williams needed money. and another superior. Webb, personally loaned it to him. This is not what man- agement does when it is looking for an excuse for getting rid of a man. It certainly offsets anything the plant manager mas have said to him long ago about not prejudicing him- self with union acti it\. WVhen Willilams' eha ior im- proved. late in 1977. he was promoted to specialist status. with an hourly raise. While it w\as not such a big thing there are 19 such specialists in this plant still, the gracious act tended to belie any animus concept. In fact. the Corn- pan 3 promoted other known union activists. as s ell. to the same higher position. The General Counsel argues that such etidence of the man's worth proves the falsity of the later discharge for cause. and he contends that the fact that management warned. even threatened, to discharge a man proses an ille- gal motive when that man is dismissed. tnder this theors the more times a man offends. the greater the number of warnings the more secure the , ork man ecomes in his en1- ployment. This also means the employer is damned if he does give progressive warnings and damned i he does not. 1 find it an unconvincing argument. The fact that Williams was capable and that the (Com- pany needed his work at that point of the production pro- cess can. instead. be viewed in a different light. The work he did was important: he had a helper and finished the electri- cal work on each boat as it moved through the assembly line. Maybe if he had a raise he would he more reliable in attendance. If he was not so necessary to the production operation. the Company might have overlooked his lapses. The best and most reasonable explanation of s hat the Company did by discharging him outright xxhen he flouted the rules once again after the repeated tolerance shown him. as Supervisor D)scus' answer to a final question of the General Counsel on cross-examination. He was asked why the ('ompany did not just suspend the man. . h' did it have to discharge him? Bv Dcus: "We figured. why give a man what he was taking an!wa,. being out: punishing him and letting him be out more for what he was doing. That was causing the problem to begin with. The other reason was that I needed Roger so desperately to work that I couldn't aflbrt to. I needed him there everN da I could have him." All things considered. I find the probative evidence insuf- ficient to support the essential allegation of the complaint. and shall therefore recommend dismissal. RECOMMENDE)D ORDER, I hereby recommend that the complaint be, andi it herehb is. dismissed. I In the event no exceptions are filed as pro ided hb Sec 10246 of the Rules and Regulations of the National .abor Relations Board, the findings conclusions, and recommended Order herein h.lil. as prosided in Sec 102.48 of he Rules and Regulations. be adhe pied h the Board and become its findings. cnclusions. anld Order. .rd .ill ohlecttions thiret, al.l he deemed wal[ed for all purp. Ses 169